People For the American Way

On Obstructing Judges, Senate Republicans Get Even Worse

[Updated] Monday evening, Senate Republicans beat back an effort to end their filibuster of Robert Bacharach to the Tenth Circuit Court of Appeals. 60 votes were needed to end the filibuster, but the vote was 56-34, with Republicans almost uniformly voting no. In so doing, they took obstruction to yet another extreme: There had never before been a successful filibuster of a circuit court nominee who was approved in committee with bipartisan support.

Republicans weren’t even pretending that there was a substantive reason to block a vote. They didn’t claim that the Tenth Circuit doesn’t need another judge. They didn’t express any concern about Bacharach’s jurisprudence. They weren’t even ginning up a phony controversy to paint him as a dangerous extremist. In fact, you’d be hard pressed to hear anything even slightly negative about Robert Bacharach. That isn’t surprising. The nonpartisan ABA panel that evaluates judicial nominees unanimously gave him its highest rating. He has been supported by both liberals and conservatives in the Senate, including both of Oklahoma’s very conservative senators. He was approved by the Judiciary Committee with no difficulty at all. He is supported by an impressive group of Oklahoma’s leading judges, attorneys, and law professors. Oklahoma’s delegation to the ABA even urged Senators Coburn and Inhofe to vote to allow a confirmation vote on this impressive nominee. (Instead, they voted "present," which for a cloture petition has the same effect as a "no" vote.)

As he has so many times before, President Obama nominated someone whose qualifications are stellar and who has earned broad support across the ideological spectrum, both within the Senate and beyond the Beltway. And, and as they have done so many times, Republicans responded by ratcheting up their obstruction to a level never seen before. They simply refuse to allow votes even on consensus circuit court nominees because there’s a presidential election in November. That is unprecedented. So it bears repeating: Republicans have engineered the first ever successful filibuster of a circuit court nominee who was approved in committee with bipartisan support.

Since 2009, Republicans – who once called filibusters of George W. Bush’s judicial nominees unconstitutional – have forced Democrats to file cloture petitions to end GOP filibusters of 30 judicial nominees. Amazingly, 20 of these have been for district court nominations. (As a point of comparison, George W. Bush and Bill Clinton had only one district court nominee apiece filibustered.)

And even when they are not formally filibustered, President Obama’s nominees have been forced to wait absurdly long after committee approval before Republicans agree to let Democrats schedule a floor vote. Compared to George W. Bush’s confirmed nominees at this point in his presidency, Obama’s nominees have had to wait three times longer.

Meanwhile, America’s courts don’t have enough judges. Because Republicans won’t allow the president to fill vacancies in a timely manner, the vacancy rate has been at a historic high during his time in office. Across the country, courtrooms are empty, and American individuals and small businesses are unable to have their day in court. But yet again, when the interests of the American people got in the way of the political interests of Senate Republicans, the American people did not come out on top.